Mens Rea Attack

Choice not to further inquire is knowledge enough. Willful blindness = knowledge

McIntyre and L’Heureux-Dubé: require an objective test. 1) No basis for distinguishing between acts and omissions and this would make S. 202 irrelevant.

2, 3) Criminal Negligence punishes consequences of departure from standard of conduct

4) Authorities dictate objective test

Use objective standard against factual circumstances and D’s perception thereof.

Lamer: ditto, but “generous allowance” for factors particular to D.

Wilson, Dickson and LaForest: want a subjective test; ignore scheme of act etc;

Start with an objective standard, move to subjective standard regarding evidence of state of mind (would therefore only protect deserving accused with extra defence)

S. 202 notoriously ambiguous and the default is supposed to be subjective
R. v. Waite (1989) SCC (p. 459) : D driving car at high speed, killed four. Trial judge said to look at subjective element (mind of accused) and evaluate that against the objective standard.

McIntyre, L’H-D and Lamer: “we said an objective test!”

Wilson, Laskin, LaForest: “when we said subjective, we meant recklessness and not deliberate intention”
Modified Objective Test

R. v. Gingrich and McLean (1991) ONCA (p. 459): Both charged with criminal negligence when truck brakes failed. Gingrich (driver) convicted, McLean acquitted. ONCA chooses objective over subjective – that’s what negligence is about. BUT each defendant must be subjectively aware of the relevant fact before you can convict on objective conduct.
R. v. Hundal (1993) SCC (p. 460-61): D charged through intersection because too dangerous to stop. Court says driving is automatic and therefore objective; only exception is subjective facts to change standard. LaForest (subj. in Tutton) says it’s quasi-regulatory.
R. v. Creighton (1993) SCC (p. 462): D a user who injected V with coke. Introduces stigma-pentalty analysis.

Lamer (diss): objective foresight the constitutional minimum for manslaughter

Test (p. 467): hold D to objective standard based on someone with D’s objective frailties, circumstances, etc.

1. 
   Offences with consequences (“causing death”) need fault requirement
   
2. 
   “Risky activities” offences presume mens rea = objective is okay
   

McLachlin: strict objective test has been Constitutional for a long time.

Test: Manslaugher should be purely objective intent to embrace risk of harm for anyone with capacity; the entire purpose is that D did not specifically intend anything.

Lamer’s approach would abrogate the thin skull rule

Would let useless, youthful offenders (R. v. Naglik) go free for no reason
Constitutional Considerations

R. v. Martineau (1990), R. v. Vaillancourt (1987)  (474): Minimum mens rea must be in line with nature of crime, usually subjective as a constitutional minimum.

Short of capital murder, war crimes etc, something less than intent is probably okay.

Objective standards okay for criminal negligence (p. 475)

R. v. Durham (1992) ONCA: careless storage of firearm violates standards

R. v. Peters (1991) BCCA: arson does not need subjective foresight

R. v. DeSousa (1992) SCC: objective standards okay for causing bodily harm
R. v. Finta (1994) SCC (p. 476): D accused of war crimes in Hungary during the war.

Cory: war crimes have special stigma, ergo need their own mens rea to make them a war crime. Must have an element of subjective knowledge on the part of D, but need only prove that D was subjectively aware of facts etc which made it a war crime.

LaForest (+2) conc.: need only prove this in relation to the major elements of the crime.
Oakes Test:

1. 
   Is the reason for Charter violation important enough to override Charter rights?
   
2. 
   Demonstrably Justified Proportionality:
   
   1. 
      Must be designed to achieve desired result; reasonably connected to objective
      
   2. 
      “impair as little as possible” Charter rights
      
   3. 
      Proportionality between severity of violation, success of measure
      

Police bound by S. 7-10

Can question anyone, can make random inquiries, but not binding.
Searches:

S. 8: Searches okay with warrant, OR

With reasonable and probable cause (without possibility of a warrant) (same standard for offences)

“Search incident to detention” / “Investigative detention”

Allowed “preventative pat-down search” if reasonable belief of “potential weapon”

“Search incident to an arrest” - Allowed on clothing, belongings – for safety etc.

Reasonable grounds to believe = balance of probabilities = can arrest for evidence needed to convict, can get wiretaps, warrants, can question and investigate, can detain

Reasonable grounds to suspect

No grounds

Cops called about burglary at night by 5’10” Ab male in coloured jacket

D matched description = enough to detain = investigative search

Search needs (reasonable belief (committed offence) (~got weapon – even tools)

“soft bulge” found = not allowed to search b/c not a weapon

Did not commit B&E – charged with possession = thrown out per S. 24

Requires “reasonable grounds to believe”

Requires “force” (or threat thereof) and “words of arrest”

Permitted “Search incident to an arrest”

Allowed on clothing, belongings – for safety etc.

Allowed S. 10 rights: information on reason; contact lawyer, Habeas Corpus

Indictable = fed/supreme court greater weight, blame, punishment,

2+ years (max sentence); fed penitentiary

Have “indictment”

Summary = provincial court; procedures in S. 787 CCC; punishments here unless elsewhere; max punishment of $2000 and 6 mos. in jail

Supersummaries – 18 mos. jail

Have “information” (indictment for summaries); sworn by cops in front of J.P. (ex partes proceedings)

Hybrid Summary or indictable as “elected” by Crown; assumed to be indictable

Issue process: Court tells you where and when to arrive

Arraignment: Charged with X

Require Double Criminality (that you can be punished for the same thing in both the USA and Canada).

Individually, or Joint Submission (both sides agree on plea bargain)

Not Guilty: Go to trial

Autrefois Acquit; Autrefois Convict (even in another country); S. 11(h) Charter

Bail: Get out of jail while waiting; no booze, guns, avoid V.
Preliminary Inquiry (see Stinchcombe, DISCLOSURE)

See a couple of key pieces of evidence

Serious cases = jury trials; jury selection
Trial:

Direct examination: cannot ask leading questions of own witnesses

Crown begins case, calls witnesses

tangible evidence must be identified by witness and entered as exhibit

Dock identification: identification on the spot at court

Cross examination: allowed to ask leading questions

Redirect – subsequent examinations; only for clarifications; no cross-examination allowed
Defence: Has burden of proof been met? (Actus reus / mens rea proved if all evidence believed?)
No = motion for a directed verdict (rare)

Yes = defence calls witnesses, crown crosses, defence redirects

Closing arguments: defence goes first if they call evidence (testimony etc), otherwise crown.

Guily=sentencing now or later

Always take more lenient one if conflicted

Many at pre-trial stage; much discretion over punishments (apologies etc); no pleas for domestic crimes b/c should not reward

Crown and judge must agree on sentence for check and balance

Judge may reject pleas, increase sentence
Voir Dire: hearing to see if evidence is admissible, valid etc.
Charter:

Charter interpreted purposefully and liberally

Everyone has the right not to be arbitrarily detained or imprisoned.

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;

b) to be tried within a reasonable time;

c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

d) (burden of proof) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

e) not to be denied reasonable bail without just cause;

f) (right to jury trial if 5+ years possible) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

h) (autrefois acquit/convict) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
24. (Throw out invalid evidence etc.)

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

7. (Boucher) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Read into it: Prosecution can be removed if doubts about disclosure

All evidence against D must be disclosed except in case of risk of witness’ life

Self-crimination 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Sources of law: Constitution; legislation; common law

Provincial powers: provincial laws; courts, reformatory prisons

Laws uncoded until 1800s. Creation of CCC 1892 = end of CL offences (S. 9) unless stated otherwise (contempt)

Consolidations of CCC in 1906, 1927; R. C. in 1947= revision in 1953

Terrorism: allowed to use force if you think the plane is in danger etc.

TERRORISM

Terrorist Provisions Discussed in Class

Part II.1,

• 
  Interpretation [of “Terrorism”]; s. 83.01 (1).
  
• 
  Financing of Terrorism; s. 83.02.
  
• 
  Using or Possessing Property for Terrorist Purposes; s. 83.04.
  
• 
  List of Entities; s. 83.05.
  
• 
  Admission of foreign information obtained in confidence; s. 83.06.
  
• 
  Freezing of property; s. 83.08.
  
• 
  Disclosure [Duty]; s. 83.1.
  
• 
  Participating in activity of terrorist group; s. 83.18.
  
  • 
    The broadest form of mode of liability seen in our class. This offence requires the highest level of intent (specific intent), but the lowest level of actus reus.
    
• 
  Investigative Hearing; s. 83.28.
  
  • 
    R. v. Bagri found that this section does not violate Charter s. 7 because of the witness has immunity from self-incrimination and the right to counsel.
    
• 
  Recognition with Conditions; s. 83.3.
  
  • 
    A “Preventative Arrest” provision.
    
  • 
    This was a sunset clause, and is no longer applicable (was voted down 159-124).
    

1. Have we got an entirely new offence? Or amalgamate of existing criminal law?

2. Are the modes of liability we have enough? Are they cast too wide (inclusion of mere preparation and remote aiders)?

3. Are the procedural and evidentiary rules necessary? Do they withstand Charter scrutiny?

4. Is the current state-centered foreign policy and criminal law of liberal realism sufficient to combat cell-based terrorism?

Scholars on the Impact of the Anti-Terrorism Act